Appointment. The Board shall consist of seven members
to be appointed by the Town Board. The terms of the initial appointees
shall be for one, two, three, four, and five years, etc., from and
after the date of appointment. Their successors, including such additional
members as may be appointed by the Town Board, shall be appointed
for the term of five years after the expiration of the terms of their
predecessors in office.

Appointment to fill vacancies. Appointments to fill
vacancies shall be for the unexpired term of the members whose term
or terms become vacant. Such appointment to fill vacancies shall be
made in the same manner as the original appointment. The Zoning Board
of Appeals (ZBA) may continue to legally operate while vacancies are
waiting to be filled, provided there are enough members to constitute
a quorum.

Votes necessary for a decision. Four members of the
ZBA shall, regardless of the number of members at a given point, be
a quorum for purposes of conducting any business. The concurring vote
of four of the members of the Board shall be necessary to reverse
any order, requirement, decision or determination of the Code Enforcement
Officer or to decide in favor of the appellant on any matter upon
which it is required to pass under the terms of this chapter or to
effect any variation of this chapter.

Meetings. All meetings of the Zoning Board of Appeals
shall be held at the call of the Chairman and at such times as such
Board may determine. All hearings conducted by the Zoning Board of
Appeals shall be open to the public. The secretary to the Zoning Board
of Appeals shall keep minutes of its proceeding showing the vote of
each member upon each question, if absent or failing to vote, indicating
such fact; and shall also keep records of its hearings and other official
action. The Board shall have the power to subpoena and require the
attendance of witnesses, administer oaths, compel testimony and the
production of books, papers, files and other evidence pertinent to
the matters before it.

Variances. The Zoning Board of Appeals may vary or
adapt the strict application of any of the requirements of this chapter
where such strict application would result in practical difficulties
or unnecessary hardship that would deprive the owner of the reasonable
use of the land or building involved.

Appeals from administrative decisions. The Zoning
Board of Appeals shall hear and decide appeals from and review any
order, requirement, decision, or determination made by the Code Enforcement
Officer in administering this chapter. It shall also hear and decide
all matters referred to it or upon which it is required to pass under
the provisions of this chapter.

Interpretation. The Zoning Board of Appeals shall,
upon request from or upon appeal of a decision by the Code Enforcement
Officer, decide any questions involving the interpretation of any
provision of this chapter, including determination of the exact location
of any district boundary if there is uncertainty with respect thereto.

General procedures. The Zoning Board of Appeals (ZBA)
shall act in strict accordance with the procedure specified by § 267-b
of Town Law and by this chapter. All appeals and variance applications
made to the ZBA shall be in writing on forms prescribed by the Board.
Every appeal or variance application shall refer to the specific provision
of this chapter involved and shall exactly set forth the interpretation
that is claimed, the use which is involved or sought, the details
of the variance that is applied for, and the ground on which of the
Zoning Board of Appeals should grant the variance. An appeal must
be made within 30 days of the action of the administrative official
appealed from. The applicant must file a signed notice of appeal with
the administrative official from whom the appeal is taken and with
the Secretary of the Zoning Board of Appeals. All information required
thereon shall be complete before an appeal is considered filed. Three
copies of the proper appeal form shall be filed with the Zoning Board
of Appeals along with a fee to be established by the Town Board. This
application must be submitted 15 days prior to the Zoning Board of
Appeals meeting date.

Variance requirements. Any property owner, tenant
or representative thereof may, in appealing decision of the Code Enforcement
Officer of the Town of Fallsburg with respect to this chapter, request
a variance from its literal terms. Application for a variance may
be made after an application for a building permit has been denied
and shall be delivered to the Code Enforcement Officer who shall then,
in acting upon the permit application, refer the matter to the Zoning
Board of Appeals for a decision on the variance request. This shall
not, however, preclude an applicant whose permit request has been
denied from subsequently requesting a variance in conjunction with
an appeal of such action if the appeal has been timely filed. The
needs or desires of a particular owner or tenant or of a particular
prospective owner or tenant shall not either, alone or in conjunction
with other factors, afford any basis for the granting of a variance.
The fact that the improvements already existing at the time of the
application are old, obsolete, outmoded or in disrepair or the fact
that the property is unimproved shall not be deemed to make the plight
of the property unique or to contribute thereto.

Two types of variances may be granted by the
Zoning Board of Appeal: area variances and use variances. Area variances
involve relief from dimensional or other requirements for existing
uses or uses allowed within the district under the terms of this chapter.
Use variances involve a use of land not allowed in a district under
the terms of this chapter. Each of the following findings of fact
shall be made in writing by resolution by the Zoning Board of Appeals
prior to granting such variances.

Area variances. The Zoning Board of Appeals shall
have the power, upon an appeal from a decision or determination of
the administrative official charged with the enforcement of such ordinance
or local law, to grant area variances as defined herein.

In making its determination, the Zoning Board
of Appeals shall take into consideration the benefit to the applicant
if the variance is granted, as weighed against the detriment to the
health, safety and welfare of the neighborhood or community by such
grant. In making such determination, the Board shall also consider:

The Board of Appeals, in the granting of area
variances, shall grant the minimum variance that it shall deem necessary
and adequate and at the same time preserve and protect the character
of the neighborhood and the health, safety and welfare of the community.

Use variances. The Zoning Board of Appeals, on appeal
from the decision or determination of the administrative official
charged with the enforcement of such ordinance or local law, shall
have the power to grant use variances, as defined herein.

No such use variance shall be granted by a board
of appeals without a showing by the applicant that applicable zoning
regulations and restrictions have caused unnecessary hardship. In
order to prove such unnecessary hardship, the applicant shall demonstrate
to the Board of Appeals that for each and every permitted use under
the zoning regulations for the particular district where the property
is located.

The Zoning Board of Appeals, in the granting
of use variances, shall grant the minimum variance that it shall deem
necessary and adequate to address the unnecessary hardship proven
by the applicant, and at the same time preserve and protect the character
of the neighborhood and the health, safety and welfare of the community.

Imposition
of conditions. The Board of Appeals shall, in the granting of both
use variances and area variances, have the authority to impose such
reasonable conditions and restrictions as are directly related to
and incidental to the proposed use of the property. Such conditions
shall be consistent with the spirit and intent of the zoning ordinance
or local law, and shall be imposed for the purpose of minimizing any
adverse impact such variance may have on the neighborhood or community.[1]

The Town Board, Code Enforcement Officer or Planning
Board of the Town of Fallsburg may request the Zoning Board of Appeals
to decide any question involving the interpretation of any provision
of this chapter and shall refer such other matters to the Zoning Board
of Appeals as it is required to decide by the provisions of this chapter.
The Zoning Board of Appeal's rules and regulations shall govern these
matters. All matters to be referred to the Zoning Board of Appeals
in such circumstances shall be in writing to the ZBA's Secretary and
be acted on within 62 days of the Secretary's receipt of the same.

Any property owner, tenant, representative thereof
or other person aggrieved by an administrative act of the Code Enforcement
Officer of the Town of Fallsburg with respect to this chapter (i.e.,
believes such decision to be in error) may appeal to the Zoning Board
of Appeals. An administrative act shall only include any order, requirements,
decision or determination made by the Code Enforcement Officer. The
Zoning Board of Appeals may reverse or affirm wholly or partly, or
may modify the order, requirement, decision or determination as in
its opinion ought to be made on the premises and to that end shall
have all the powers of the official(s) from whom the appeal is taken.

The administrative official from whom the appeal is
taken shall be responsible, at the direction of the Zoning Board of
Appeals, for providing any applicant with the proper forms and for
instructing the parties concerned on the proper manner for completing
and filing said forms. All information required thereon shall be complete
before an appeal is considered filed.

Notice of hearing. The Zoning Board of Appeals shall
give notice of the hearing at least five days prior to the date thereof
by publication in the official Town paper. In addition, the applicant
shall notify by certified mail at least seven calendar days before
the hearing to the following: all owners of property which lie adjacent
to that owned by the applicant and all other owners within 300 feet
of the applicant's property line in any direction. The names of said
owners shall be taken as they appear on the last completed tax roll
of the Town.

Irrelevant or unduly repetitious evidence or
cross-examination may be excluded. Except as otherwise provided by
statute, the burden of proof shall be on the party who initiated the
proceedings. No decision, determination or order shall be made except
upon consideration of the record as a whole or such portion thereof
as may be cited by any party to the proceeding and as supported by
and in accordance with substantial evidence.

Unless otherwise provided by any statute, the
Board need not observe the rules of evidence observed by courts, but
shall give effect to rules of privilege recognized by law. Objections
to evidentiary offers may be made and shall be noted in the record.
Subject to these requirements, an agency may, for the purpose of expediting
the hearing, and when the interests of parties will not be substantially
prejudiced thereby, adopt procedures for the submission of all or
part of the evidence in written form.

All evidence, including records and documents
in the possession of the agency of which it derives to avail itself,
shall be offered and made a part of the record, and all such documentary
evidence may be received in the form of copies of excerpts, or by
incorporation by reference. In case of incorporation by reference,
the materials so incorporated shall be available for examination by
the parties before being received in evidence.

Official notice may be taken of all facts of
which judicial notice could be taken and of other facts within the
specialized knowledge of the Zoning Board of Appeals. When official
notice is taken of a material fact not appearing in the evidence in
the record and of which judicial notice could be taken, every party
shall be given notice thereof and shall on a timely request be afforded
an opportunity prior to the decision to dispute the fact of its materiality.

Prior to the date of any public hearing, the Secretary
of the Zoning Board of Appeals shall transmit to the Chairman of the
Planning Board, a copy of any appeal or application, together with
a copy of the notice of such hearing. The Planning Board may submit
to the Zoning Board of Appeals an advisory opinion on said appeal
or application at any time prior to the rendering of a decision by
the Zoning Board of Appeals.

Should any action by the Zoning Board of Appeals involve
any of the areas specified in §§ 239-l, 239-m and 239-nn
of Article 12-B of the General Municipal Law, then the matter shall
be referred prior to final action by the Zoning Board of Appeals to
the Sullivan County Planning Department and/or adjoining municipalities
in accordance with that law. A report of the Board of Appeals final
action must be submitted to the county within seven days of such action.

Every decision of the Zoning Board of Appeals shall
be recorded in accordance with standard forms adopted by the Board
and shall fully set forth the circumstances of the case and shall
contain a full record of the findings on which the decision is based.
Every decision of the Board shall be by resolution and each such resolution
shall be filed in the office of the Town Clerk by case number under
one of the following heads: interpretation, or variances; together
with all documents pertaining thereto. Regarding their decision in
each case, the Zoning Board of Appeals shall notify the Code Enforcement
Officer, Town Board, Planning Board, and the Municipal Clerk of any
affected municipality given notice of hearing.

All the provisions of this chapter relating to the
Zoning Board of Appeals shall be strictly construed. Said Board as
a body of jurisdiction shall act in full conformity with all provisions
of law and of this chapter and in strict compliance with all limitations
contained therein.